I am not politically correct. I do not think the death penalty is intrinsically immoral or contrary to basic human rights. I believe organized society, like individuals, has a right to self-defense and that this right is an unconditional absolute that includes the societal prerogative to deprive a human being of his or her life for particular crimes adjudicated according to due process. I am not, therefore, opposed to the death penalty in principle. I am, however, opposed to it in practice.

My position has been formed by five factors: my Jewish tradition, my Federalist intellect, my anti-Federalist temperament, my concern for equal protection before the law as defined by the 14th Amendment and my concern for the efficacy and cost-effectiveness of law enforcement in general.

The Jewish tradition endorses the death penalty. Four of the 613 commandments that obligate Orthodox Jews are various methods of execution (depending on the offence). Jewish laws of evidence, however, usually render moot all of these methods. Under Jewish Law the following conditions must be met in order to actively enforce the death penalty: there must be two eye witnesses and the perpetrator must have been warned beforehand not to commit the crime.

For example, if a dozen people see X chasing Y into a cave carrying a pistol and threatening to kill him and all 12 had heard X threaten Y with murder previously and they hear a shot and X walks out and confesses he just killed Y and they walk into he cave and find Y dead and subsequent forensic evidence reinforces X’s confession then, still, under Jewish law X could not be put to death.

He could not be put to death because there were not two eyewitnesses. He could not even be put to death if one of the twelve chased him into the cave and eye witnessed the crime. He could not even be put to death if two of the twelve chased him into the cave and eye witnessed the crime if X had not been forewarned previously not to commit the crime. Under Jewish law X could only be put to death if he were forewarned and there were two eye witnesses.

In regards to the death penalty Jewish law, therefore affirms two basic principles: firstly, societies right to take a life for certain offenses; secondly, the sanctity of life being so paramount that the laws of evidence must be so designed that it is all but impossible to carry out a death sentence. Jewish law cultivates a purposely-exaggerated concern for the possibility of human error and builds a firewall around the possible misuse of the judicial process and death penalty by authorities and an inflamed public.

The Federalists, like the Jews, had a great concern for human error, especially the error of majority opinion as it pertains to the question of the unalienable rights of the individual. Indeed, this was one of the motive factors of the body of the Constitution. The Jewish regard for two witnesses has its parallel in the Constitution, Article III, section 3 paragraph 1 of the Constitution states: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act” (italics mine). This condition reflects the justifiable Federalist fear of political demagoguery being reinforced by a mob mentality. The Federalists were very concerned to separate due process from an inflamed public and political demagoguery. This concern anticipated many events that occurred during the McCarthy period (such as the fact that the Rosenbergs were convicted and executed without “the testimony of two witnesses to the same overt act”). If these are the rules of evidence for treason (which might and often does result in multiple or mass death) why shouldn’t they be the rules of evidence for murder?

My intellect may be Federalist but my temperament is anti-Federalist. That is to say I recognize the need for strong central government but I am pathologically suspicious of the power of government vis-à-vis the unalienable rights of the individual. James Madison is my favorite founding father. A co-author of the Federalist Papers (along with Hamilton and Jay) he later joined with the anti-Federalist Jefferson to establish the Republican Party.

My anti-Federalist temperament also re-enforces my Jewish tradition. The anti-Federalists, like the Jews, were deeply suspicious of power. When the people of Israel cried out for a strong monarchy, God, playing the part of a proto anti-Federalist, warned them against it but then like a good Federalist approved it. (Because objective conditions then required it – just as objective conditions required Jefferson to act like a Federalist when he declared war on the Barbary Pirates and initiated the Louisiana Purchase.)

I find it ironic that many of the most outspoken advocates of deregulation and privatization (and laissez faire economics in general) are often the most vigorous supporters of the death penalty. If governments are inherently incapable of supplying services efficiently (the fundamental, and often very true, argument of the free marketers) and that the task of those concerned with liberty should be to get governments out of the lives of people as much as possible, why do they believe that governments should be allowed control over the very life of people?

If governments are incapable of running a train system rationally and efficiently and without error why should one assume that they could run a capital crimes system rationally and efficiently and without error? Even an anecdotal observation leads one to conclude that America’s justice system is even more dysfunctional than Amtrak. Do we, as civilized people really want to place ultimate decisions regarding human life and death in the hands of people like those who run Amtrak? It is an absolute certainty that many innocent people have been executed in the United States. It is this horrific certainty that should guide our thinking in regard to the death penalty.

Both my Federalist intellect and my anti-Federalist temperament lead me to a fanatical preoccupation with the equal protection clause of the Constitution, especially as it pertains to questions of life and death. Given the socio-economic realities of the United States the death penalty has become a gross de facto violation of the equal protection clause. Can one seriously argue that there is de facto equal protection under the law when one defendant is forced by circumstance to depend on overworked public defenders and another defendant has the wherewithal to employ an entire team of high-powered lawyers?

The statistics regarding the inequity of the Death Penalty in the United States are so compelling that it is amazing that anyone can confidently say that justice has been done when someone has been put to death. Anecdotal reality in this regard can be surrealistically bizarre. Recently an American court ruled that someone had received a fair trial even though his lawyer had slept through the trial. One wonders if the court would have ruled the same if the lawyer had been dead.

There is no question that the fundamental judicial inequality inherent to the American justice system must be redressed in general and not only in capital crime cases. There is also no question that it will never reach absolute equality but can only strive for an ever-decreasing inequality. How then can we put people to death on the basis of such a system? Anti-Federalists sentiments have been vindicated in practice.

My final reason for opposing the death penalty is concern for the efficiency of the law enforcement apparatus in general and the cost effectiveness of life imprisonment as opposed to the death penalty. Death sentences impose an unbelievable long-term burden on State and Local law enforcement agencies. Both the direct and indirect costs are enormous because in a Democracy a death sentence entitles the accused to access to every avenue of appeal. This appeals process takes years if not decades.

Every station along the way consumes thousands of hours and costs hundred of thousand of dollars on the part of the police, District Attorney and Judiciary. I have read one estimate that at a minimum the cost is over one million dollars and 10,000 work-hours. These are the direct measurable costs. But the direct, non measurable costs, might be even greater and could include cases not brought to trial or prosecuted due to the clogging up of the system and crimes not solved as well as lessening of morale of law enforcement personnel at all levels.

My conclusion is life without parole for capital crimes is the most moral democratic and efficient punishment possible. In the end it might also be the cruelest.

Thanks for the very interesting and multifaceted piece. I agree with most of its content, in particular I find very interesting the conflation of Talmudic and American anti-Federalist traditions.

I would like to add a couple of thoughts on the subject.

Are future penal systems going to be more and more inclusive? Before modern times, committing certain, serious crimes - even violent ones - determined only the exclusion from society - or from certain, more sacred, social circles. There were ostracism, bans, anathemas, exiles, excommunications. Something changed during the modern era, Foucault analyzed this in great detail. Societies started to act like organisms with an immune system, certain structures appeared - and these structures begun to perform some kind of phagocytosis. Criminals and lunatics were segregated, included, jailed - they had to undergo an hygienic, healing process. The idea was to rehabilitate and purify criminals - only to reinsert them again afterwards, as functional members of society. When rehabilitation was impossible - people had to be secluded within special facilities of public interests, often for life. This is how totalitarianism was created, from the idea that nothing human can exist outside society and its institutions.

Maybe, in the future we can revert this totalitarian process. Maybe we can indeed dismantle not only death rows, but jails altogether. Today, we already have the technology to enforce ostracism again, and quite efficiently too. Certain people could just be kept away from certain zones, certain places, certain people. Really dangerous criminals might be forbidden to come close to any other human being. I admit there are indeed some abominable crimes that call for public, ritual revenge, as some kind of social catharsis. But they are only few - men like William Hickman, or Gilles de Rias. In most cases, do we really need to jail, cure, or kill those who cannot come to terms with our laws?